Delhi High Court
Enforcement Directorate vs Ajay Bakliwal on 8 October, 2002
Equivalent citations: 2003CRILJ1813, 101(2002)DLT92, 2003(66)DRJ87, 2003(85)ECC308, 2003 CRI. L. J. 1813, (2003) 3 ALLINDCAS 528 (DEL), (2003) 1 PUN LR 1, (2002) 101 DLT 92, (2002) 4 CURCRIR 525, (2003) 66 DRJ 87, (2004) 119 COMCAS 773
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
1. A very interesting situation has arisen in this petition which at the threshold can be allowed in view of the judgment of the Supreme Court in Enforcement Directorate and Anr. v. M. Samba Siva Rao and Ors. wherein the contentions question whether summons issued under Section 40 of the Foreign Exchange Regulation Act, 1973 (in short FERA) if not obeyed can be held to be a contravention of the provisions of the Act and whether any contravention of a direction issued under the Act, would squarely come within the ambit of Section 56 of the Act.
2. The aforesaid judgment of the Supreme Court arose out of judgment and order dated 9.7.1999 passed by this court in Crl.M(M) Nos. 500, 1299 of 1997, 477 of 1998, 3094 of 1997, 1509 of 1997, 502 of 1997 and 541 of 1998 wherein this court took the view that for contravention of provisions of Section 40 of the Act the Union Government can prosecute the accused for offences under the provisions of Section 174 or any other relevant provision under Chapter 10 of Indian Penal Code relating to contempts of the lawful authority of public servants and not under Section 56 of the Act. The view of this court was in consonance with the view of Kerala High Court in Itty v. Asstt. Director (1992) 58 ELT 172 (Ker) wherein it was held that the failure to obey the summons issued under Section 40(1) cannot be held to a contravention of the provisions of the Act, rule, direction or order inasmuch as it is only when directions pertaining to some money value involved are disobeyed, such disobedience is punishable under Section 56 of the Act. In the similar vein was the judgment of Madras High Court in Criminal OPs Nos. 5468 and 5629 of 1996 dated 1.8.1997 (C. Sampath Kumar v. A.N. Dyaneswaran).
3. In order to appreciate the applicability of the ratio and the judgment delivered by the Supreme Court, the facts of the instant case on which great emphasis has been laid by Mr. Satish Tamta, learned counsel for respondent, need to be culled out in brief. These are as under:--
4. On 2.1.1992, officers of Enforcement Directorate searched the premises of one Shri Prakash Chand R/o E-5, Jangpura Extension, New Delhi and during search respondent Ajay Bakliwal visited that premises and on suspicion, search of accused was conducted by the officers of the petitioner-complainant resulting in recovery of Rs. 40,000/- which amount was returned to him at the spot. However, during investigation, involvement of respondent came to light and, therefore, summons under Section 40 of FERA was issued to him on two occasions for appearance. But he did not respond to these notices and sent evasive replies on one pretext or the other. This conduct of the respondent forced the petitioner to file complaint under Section 56 of FERA on 27.1.1993. Cognizance of the offence was taken on the same date. Responding to the cognizance taken against him the respondent moved the learned trial court for discharge and dropping of the proceedings on the premises that the provisions of Section 56 of FERA was not attracted. However, this application was disposed of by learned ACMM by order dated 27.12.1994 holding that Section 56 of FERA is not attracted for disobedience to summons under Section 40 of FERA and only an offence under Section 228 IPC was made out and he proceeded to prosecute the respondent for the said offence.
5. Both the parties felt aggrieved from the said order. The respondent filed a petition under Section 482 Cr.P.C. for quashing the order whereas the petitioner filed instant petition for quashing the order initiating proceedings under Section 56 of FERA. However, perusal of petition filed by the respondent shows that the said order of learned ACMM was sought to be quashed mainly on the ground of limitation. Before the petition of the respondent could come for final decision, the petition of the petitioner was dismissed in default on 20.12.2000 and it remained in that stage till 8.10.2001 when this court restored the said petition but prior to that, the petition of the respondent was allowed by this court vide judgment dated 7.8.2001 setting aside the impugned portion of the said order of ACMM whereby he held that respondent has committed an offence under Section 228 IPC. At the same time, as regards prayer of the respondent in those proceedings for setting aside part of ACMM order whereby offence held to have not been committed by the respondent, it was observed that in view of the dismissal of the petition filed by the petitioner in default, the said order had attained finality and therefore cannot be disturbed in exercise of supervisory power under Section 482 Cr.P.C.
6. The main plank of the contention of counsel for respondent is that once his petition quashing the order of the learned ACMM had attained finality, the same cannot be disturbed or reopened by the instant petition having been restored subsequent to the order of this court. I am afraid aforesaid contention holds water like sieve as the observations of his Lordship Justice K.S. Gupta vide whose order petition of the respondent was allowed, cannot be lost sight of nor can these be taken in isolation. These observations are as under:--
"As regards prayer seeking setting aside part of aforesaid order dated 22nd December, 1994 whereby offence under Section 56 was held to have not been committed by the petitioner, it is pertinent to note that respondent No. 2 had filed Criminal Miscellaneous (Main) No. 2378/98 for the above purpose which was dismissed in default. Said part of the order thus having attained finality should not be disturbed in exercise of supervisory power under Section 483 Cr.P.C. Decision in Krishnan's case (supra) is of no assistance to respondent No. 2. For the foregoing discussion, impugned order deserves to be set aside on both the aforesaid counts and complaint quashed."
7. However, the very circumstances of instant petition having been restored by order dated 8.10.2001 wipes out any observation made by his Lordship in the order disposing of the petition of the respondent and render it not only irrelevant but redundant as the instant petition has to be decided and determined in the perspective of its own facts and contentions raised by the petitioner.
8. Furthermore what was set aside by order dated 7.8.2001 was the order of the learned ACMM whereby he held that complaint under Section 228 IPC alone was made out. This does not mean that complaint made under Section 56 of FERA by petitioner also stood dismissed Along with it. Had it been so, the petitioner would not have challenged the said order by way of instant petition.
9. Thus, from any angle we may examine this petition, the fact remains that the instant petition stands on its own independent pedestal or edifice and has to be considered on its own facts without being influenced or swayed or affected by the order of this court dated 7.8.2001 whereby the petition of the respondent seeking setting aside of the order of ACMM was allowed.
10. Having come to the aforesaid conclusion as to preliminary though not ancillary aspect of the matter, I set down to the contentions raised by the counsel for the parties as to whether complaint filed by the petitioner under Section 56 of FERA though way back in 1993 was maintainable or not?
11. I would avoid dwelling either upon the fact at more length than that already referred or by analysing the provisions of Section 40 and Section 56 of FERA as the controversy arising from the judgments of this court, Kerala High Court and Madras High Court has been put at rest once for all by the Supreme Court in the aforesaid judgment in M. Samba Siva Rao's case which has settled the proposition beyond the pale of controversy with the following observation:--
"The answer to the question raised would depend upon an analysis and interpretation of the aforesaid two provisions of the Act. The Foreign Exchange Regulation Act, 1973 was enacted by Parliament, basically for the conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interest of economic development of the country The Act having been enacted in the interest of national economy, the provisions thereof should be construed so as to make it workable and the interpretation given should be purposive and the provisions should receive a fair construction without doing any violence to the language employed by the legislature. The provisions of Section 40 itself, which confers power on the officer of the Enforcement Directorate, to summon any person whose attendance he considers necessary during the course of any investigation, makes it binding as provided under Sub-section (3) of Section 40, and the investigation or the proceeding in the course of which such summons are issued have been deemed to be a judicial proceeding by virtue of Sub-section (4) of Section 40. These principles should be borne in mind, while interpreting the provisions of Section 40 and its effect, if a person violates or disobeys the directions issued under Section 40. Before embarking upon an in-depth inquiry into the provisions of the Act for the purpose of interpretation of Section 40 and Section 56, it would be appropriate to notice some of the decisions given by different High Courts on the subject.
xxxxx In our view Clauses (i) and (ii) of Section 56(i) are material for deciding the quantum of punishment and further, there is no reason why the expression "in any other case" in Section 56(1)(ii) should be given any restrictive meaning to the effect that it must be in relation to the money value involved, as has been done by the Kerala High Court. The summons issued under Section 40, if not obeyed, must be held to be a contravention of the provisions of the Act and at any rate, a contravention of a direction issued under the Act, and therefore, such contravention would squarely come within the ambit of Section 56 of the Act."
12. Though the aforesaid interpretation of the provisions was self evident on first hand reading of provisions of Section 56 while coming to the conclusion that the summons issued under Section 40 if not obeyed, must be held to be a contravention of the provisions of the Act and at any rate, a contravention of a direction issued under the Act, and therefore, both contravention fall within the arena of Section 56 of the Act, yet the object and purpose and nature of FERA is itself a self contained code and in this regard the observations of the Supreme Court in Central Board of Investigation v. State of Rajasthan are quote worthy. These are like this:--
"But FERA is a self-contained code containing comprehensive provisions of investigation, inquiry or trial for the offences under that Act. The provisions under FERA give power to the officers of the Directorate of Enforcement or other officers duly authorised by the Central Government under FERA to search, confiscate, recover, arrest, record statement of witnesses, etc. FERA contains provisions for trial of the offences under FERA and imposition of punishment for such offences. FERA, being a special law, containing provisions for investigation, inquiry, search, seizure, trial and imposition of punishment for offences under FERA, Section 5 of the Code of Criminal Procedure is not applicable in respect of offences under FERA."
13. An objection has been raised by learned counsel for the respondent as to the instant petition being barred by limitation. This attempt is highly feeble and is difficult to accept as there is no limitation prescribed for any relief sought under Section 482 Cr.P.C. This provision is to prevent abuse of process of any court or otherwise to secure the ends of justice. Merely because the revision petition was filed at a belated stage can not provide colour of legality to an order which is patently illegal or suffers from the abuse of process of any court. The underlying object of provisions of Section 482 Cr.P.C. is to secure the ends of justice. Nothing more and nothing less.
14. The upshot of the aforesaid discussion is that petition has to be allowed. The impugned order of learned ACMM is set aside. However, in order to be fair to respondent, the learned trial Judge is impressed upon to expedite the trial and if possible on day to day basis.